03/10/2014

On a serious note, I think Daniel Hannan is in the right on the issue:

I wish it were as easy as goodies against baddies, students against secret policemen, democrats against autocrats. In the early stages of an uprising – what we might call the Arab Spring Phase – Western media, wanting to simplify things for their readers, gloss over the complexities. Later, when things turn tragic, those readers can be left baffled.

Don’t get me wrong. Viktor Yanukovych was a nasty piece of work, whose goons carried out unspeakable crimes. My sympathies were with the protesters, both in general (the vision of a pluralist, market-oriented Ukraine is more wholesome than that of a country tied to Putin) and on the specific issue that triggered the demonstrations (a free trade agreement is better than a customs union, because it is non-exclusive).

But the ousting of a thug doesn’t mean that “all shall be well / and all manner of thing shall be well”. This is, after all, not the first time that Yanukovych has been toppled by street protests. Ten years ago, crowds in the same places pushed him from office and, in new elections, installed their candidate, Viktor Yuschenko. Years of corruption and failure followed, and Yanukovych came back, in an election that observers agreed had been free and fair, in 2010.

Ukraine means “edge” or “borderland” (Krajina in the former Yugoslavia shares its etymology). To Russian nationalists, Kiev is the cradle of Russian nationhood, and Ukrainians are the Little Russians who, along with the White Russians and the Great Russians, comprised the historic motherland. Plenty of Russians will tell you that Ukrainian is a Russian dialect and Ukrainian national identity a creation of, first, Polish and, later, Austrian occupiers. They point to the many famous Russians who might as easily be called Ukrainian – Gogol, Tchaikovsky, Brezhnev – arguing that the distinction is synthetic and pointless.

Ukrainian patriots respond by pointing to the result of their 1991 referendum, when 92.3 per cent of voters, including a clear majority of Russian-speakers, voted for independence. There were majorities for separation in every region – even Crimea, which had always historically been part of Russia until whimsically given to Ukraine by Khruschev (another Russian with Ukrainian connections) in 1954.

These two views – Ukrainians as a historic people, Ukrainians as a strain of Russians – frame the present quarrel. Most Russian nationalists allow, albeit reluctantly, that Ukrainian national consciousness exists. Alexander Solzhenitsyn grumpily accepted that western Ukrainians, after the horrors of the Soviet era, had been permanently alienated from Mother Russia; but he insisted that the frontiers were arbitrarily drawn under Lenin. If Ukrainians claimed independence on grounds of having a separate national identity, he argued, they must extend their own logic to the Russian-speakers east of the Dnieper.

Crimea is an example of post-Westaphalia great power politics. Legitimacy cannot simply be seen as lines on a map, which is the great error of post-Versailles great power politics, but it must be seen as a topographic map. On that topographic map, Russia's legitimacy in the Crimea may very well be greater, for reasons which would take an entire book on Crimean history to write, than a nationalistic Ukrainian government's legitimacy.

02/01/2014

No political truth is certainly of greater intrinsic value or is stamped with the authority more more enlightened patrons of liberty than that on which the objection is founded. The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective may justly by pronounced the very definition of tyranny.

It was a promise he quickly acted on. As troubling as it may be, President Obama’s rhetoric is worse than his bite. Even though the remark “I’ve got a pen, and I’ve got a phone” certainly shows a frustration with Congress that can easily cross the line into disregard for the separation of power, his new executive order does not interfere with the powers of the legislature.

As chief executive, the president may make decisions about the operation of the executive branch. Executive orders are a way for the president to address the day-to-day administration of the executive branch, and to use his power as the head of that branch, as he promised in his inauguration, to “preserve, protect and defend the Constitution of the United States.” For instance, he may use executive orders to instruct all executive branch cafeterias to only stock Pepsi products, or, more seriously, he may forbid the segregation of the armed forces as an organization administrated by the executive branch, as President Truman did with Executive Order 9981. Such power is apart of being the chief magistrate of the executive branch, and are therefore congenial to the principle of the separation of power. It would take the president using his power to direct the operation of the Federal government so as to change or contradict standing law for the separation of powers to be violated.

We clearly must be careful when talking about the president changing or contradicting standing law. Executive Order 8802, for instance, was motivated by more than President Truman seeing a non-segregated armed forces as being instrumental to the defense of the nation. By promulgating the order, Truman certainly was positioning himself against the Jim Crow laws and the widespread discrimination of blacks across the United States. In addition, he was certainly contradicting certain laws at the state level in the American South which ensured the segregation of those respective state governments. However, Truman did not contradict any Federal laws when he put his signature upon Executive Order 8802, and the scope of that order was entirely limited to the administration of the executive branch.

Similarly, President Obama’s executive order that all Federal contractors be paid a minimum wage of $10.10 is by and large Obama directing how employees under the administration of his executive branch should be paid. I write ‘by and large’ because I for one am not clear whether all Federal contractors are under the scope of the executive branch. If all Federal contractors are indeed under the administration of the executive branch, then the executive order merely dictates how the executive branch’s employees should be paid, which is a proper use of an executive order. However, if that is not the case, then President Obama’s executive order, by trying to order how the other branches of the Federal government administer themselves, violates the Constitution and the principle of the separation of powers. For now, I shall presume that the executive order is correct in its treatment of Federal contractors.

Both executive orders are surely within the discretionary power of the president as chief magistrate of the executive branch. Both also surely approach the limits of proper executive authority. Executive Order 8802 was meant as a stepping stone to further legislation against discrimination just as President Obama would be using his own executive order as a stepping stone to future legislation to raise the minimum wage. As challenges to the legislative branch, it is not exactly clear how the two would “preserve, protect and defend the Constitution of the United States” since they are aimed at improvements to the status quo; nevertheless, they are both within the limits of the law as established by the Constitution, and whose legality has been corroborated by precedent. In a very real way, even though I myself might look at Executive Order 8802 and struggle to see exactly how it fits into the power granted to the president by the Constitution (specifically Article II, Section 1, Clause 1 and Article II, Section 3, Clause 5), the fact that Executive Order 8802 was never successfully challenged is an indicates that it is within the proper authority of the executive branch, and that it may therefore be used as a precedent for the future use of executive orders.

The distinction between laws and orders is of help here. Whereas laws form what could be called the operating system of a nation, providing rules which must everywhere and anywhere be adhered to, orders involve telling specific people to do specific things. The proper place of an executive order qua order is in telling the specific people who work in the executive branch a specific thing to do, even if that thing is as trivial as only serving Pepsi products. It is not a law, and it therefore has no authority to establish general rules of conduct which must be obeyed by all. Only Congress has the authority to do that. As long as executive orders remain orders specific to the administration of the executive branch, they respect that authority of Congress, and do not pose any problems for the principle of the separation of problems. President Truman’s Executive Order 8802 fits all of the criteria for an order rather than a law, and cannot therefore be considered an attempt at legislation since legislation aims at changing law.

Overall, even though President Obama’s rhetoric about the reach of executive authority is troubling, his recent executive order to increase the minimum wage of Federal contractors (assuming they are all under the purview of the executive branch) is fully congruent with law and precedent. When making accusations about presidents legislating through executive orders, we need to be careful to distinguish between executive orders which tell specific people to do specific things, and those which try to tell everybody to do specific things. Only the latter are unlawful attempts at legislation, the former are instead lawful management of the operation of the executive branch by the president as its chief executive. The distinction matters, and must be made if we are to speak sensibly about things.